New inspector general serves up power grab

It is an old word out of the Middle Ages, part Latin and part Indo-European.

Next to indictment, it is the most terrifying word in politics. The very mention of the word sends chills down the spines of politicians.

And with good reason. All it takes for a political figure to be ruined is to have an overzealous prosecutor leak that the politician has been subpoenaed to appear before a grand jury investigating corruption in state government, even if it is a fishing expedition, like the long, fruitless investigation into the alleged corruption by legislators in the hiring practices of the Probation Department.

And prosecutors do leak. Just recall the circus-like atmosphere around imprisoned former House Speaker Sal DiMasi when he was subpoenaed last February to testify before a "secret" U.S. grand jury investigating the aforementioned Probation Department last June. DiMasi got more ink and television time than Whitey Bulger. He'll probably end up serving more time as well.

Unsubstantiated guilt or innocence really doesn't matter, though, because once it becomes known that you've been subpoenaed, you are tainted, if not already found "guilty."

It is a powerful weapon because it forces a person to testify under oath under the pain and penalty of perjury -- whether you know something or not -- and if you refuse to talk you can go to jail.

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Which is why judicious lawmakers over the years have been careful to limit the power of prosecutors and investigators when it comes to forcing people to testify under oath.

The attorney general, the district attorney or the U.S. attorney do not have in-house subpoena power, which means they cannot compel people to testify before them under oath, but must first go to a grand jury, which is made up of citizens. This time-honored process is supposed to serve as a check on the powers of overzealous prosecutors, although grand juries usually serve as a prosecutor's rubber stamp.

As a New York judge once noted, a prosecutor has so much control over a grand jury that he could get it to indict a ham sandwich. (He later said he regretted he did not say pastrami.)

The point is that the power of prosecutors to subpoena witnesses is not unfettered, but that they at least need to summon a grand jury to proceed.

All that would change drastically if an unusual, and potentially dangerous, power grab by the state's new inspector general is allowed to become law.

Glenn A. Cunha, who was appointed IG just five months ago, has quietly filed legislation that would grant him the sole, unchecked and unfettered authority to subpoena witnesses and compel them to testify before him under oath in investigations of waste, fraud and abuse in state government.

Under existing law, the inspector general, who has a staff of 40 and an ample budget, must seek permission for subpoenas from an eight-member panel that was set up to oversee the IG and his office and to guard against abuse by overenthusiastic investigators. Cunha's bill would eliminate the panel and give him sole power to issue subpoenas.

It is a star chamber power grab that no other office in the state has, let alone an untested IG who is so new to the job as to be unrecognizable to anyone but his immediate staff. And, if approved, it would grant Cunha more investigative and prosecutorial power than is invested in the office of the attorney general or the district attorneys. They are elected, and the inspector general is not.

Such authority would make Cunha even more powerful than Attorney General Martha Coakley, whom Cunha worked for before he was appointed inspector general five months ago. The IG is appointed by the governor, state auditor and attorney general. Coakley voted for him.

If the proposal were not disturbing enough on its own, Cunha filed the bill without consulting with Gov. Deval Patrick or House Speaker Robert DeLeo or other legislative leaders. The matter became public only when Sean Murphy of the Boston Globe reported it.

Most likely it will not pass. But you never know. Members of the Massachusetts Legislature are running so scared these days that they are prone to plead guilty before they are even subpoenaed.

And besides, as Cunha told the Globe: "Issuing subpoenas would not be a daily occurrence." How nice.

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